Longstean v. Owen McCaffrey's Sons ( 1920 )

The acts of alleged negligence of the defendant are set up in the complaint in a single involved sentence of twenty-nine lines, which reads as follows: "2. On or about the ___ day of October, 1917, the defendant negligently allowed a number of empty coal barges to break from the towing tug and go adrift and land upon the beach about two thousand feet distant from where said cottage of the plaintiff was and is situated, and at such a distance that no harm would have occurred and no danger would have been imminent to the plaintiff's said premises and cottage but for the further negligent acts of the defendant, in that the defendant had ample time and warning from the harbor master of the city of New Haven to remove said barges, and did in fact remove all except one, and was offered abundant assistance to remove the other long before the damage hereinafter described was done by the remaining barge to the premises and cottage of the plaintiff, as hereinafter described; but the defendant negligently allowed one of said barges to remain on the shore and on the beach and allowed the same to remain there for a period of about a week and for an unreasonable length of time, and for a length of time which was unreasonable and dangerous to adjoining property, for the defendant knew, or by the exercise of reasonable care might have known, that another storm was likely to break said barge up, thereby doing damage to the premises and cottage of the plaintiff and to other property, and the defendant was warned that said barge was in such position and situation that it was a danger to the plaintiff's said premises and to other cottages on the shore at that place, and that a storm was likely to arise at any time at that season of the year and break up said barge and throw the parts of it upon the premises of the plaintiff and others and thereby do considerable damage."

The plaintiff's counsel does not attempt to state in his brief the ground or grounds of negligence which he claims to have thus set up; but in his oral argument, and evidently in the trial court, he claimed that the complaint set up one cause of action for negligently allowing this barge to break away and go ashore, and another cause of action in permitting her to remain on the beach from October 14th to October 30th, when defendant ought to have known that a storm was likely to arise and break up the barge and cause the pieces of the barge to damage plaintiff's cottage, and especially as defendant had been warned of this precise danger.

As we read paragraph two it sets up one ground of negligence only, the acts and omissions subsequent to the beaching of the barge. It does not set up a case of negligence by reason of the barges breaking loose through defendant's use of a defective hawser in towing these barges. It distinctly alleges that the negligence in permitting the barges to break away and drift ashore, would not have done harm to plaintiff's cottage but for the further negligent acts of the defendant, subsequent to this time. By her express allegation, the plaintiff excludes the negligent breaking away of the barge as a ground of negligence.

The trial court, misled by the obscure manner in which paragraph two of the complaint was drawn — which on casual inspection would be apt to lead to this construction — erroneously instructed the jury that this was one of the grounds of negligence alleged. And in this connection the court submitted to the jury the question: "Did the defendant have the boats equipped with anchors, chains, or cables, by which the crews could have prevented the barges from drifting ashore?" No such ground of negligence is found in the complaint; yet the court concluded its instruction upon this point: "I shall leave it to you, gentlemen of the jury, to decide as a matter of fact whether, if the defendant failed to equip the barges with anchors and chains or cables, it was negligent or not." This was error.

Defendant also complains of the instruction to the jury, "that if you find that this defendant permitted his barge to lie unsecured on the beach, and that so lying there it was liable to be washed out into these navigable waters by ordinary high tides, by storms, floods or otherwise, voluntarily abandoning the boat there, on or about the 25th of October, then if you so find, the defendant violated this statute and was guilty of negligence in so doing; and if that negligence was the proximate cause of this plaintiff's injury, then this defendant was guilty of actionable negligence."

The statute upon which the court based its charge (9 Fed. Stat. Ann. (2d Ed.) p. 58; 10 U.S. Comp. Stat. 1916, § 9918) provides, in the first part, that it shall not be lawful "to throw, discharge, or deposit" from or out of any ship, barge, or floating craft of any kind, any refuse matter of any kind other than that flowing in street or sewer in liquid state, into any navigable waters of the United States. Depositing refuse in any navigable waters of the United States from or out of any floating craft constitutes the offense of the statute, and its violation would furnish, if it occasioned injury and was the proximate cause of the damage, a cause of action for negligence for the damage done. MyrtlePoint Transportation Co. v. Port of Coquille River,86 Or. 311, 168 P. 625.

A barge beached upon the shore of navigable water cannot be held to be "refuse," within the meaning of this Act, whether the barge came there through fault of the owner or unavoidable accident, or whether it was abandoned from the time it became beached. And by the terms of this offense the refuse must have been thrown, deposited, or discharged, or been permitted to be thrown, discharged, or deposited, from or out of the barge. None of the conditions constituting the offense described in the first portion of the statute are present in the situation detailed before us.

An even more controlling reason made this part of the statute, and all of it, inadmissible. The court, as appears from the instruction, relied upon the latter part, which reads, "it shall not be lawful to deposit, or cause, suffer, or procure to be deposited material of any kind in any place on the bank of any navigable water, or on the bank of any tributary of any navigable water, where the same shall be liable to be washed into such navigable water, either by ordinary or high tides, or by storms or floods, or otherwise." This portion of the statute was intended to secure the prevention of the impeding or obstruction of navigation by depositing, or suffering to be deposited, any kind of material, refuse or otherwise, on the bank or shore of navigable water, or on the bank or shore of its tributary, where the same shall be liable to be washed into such navigable water. Protection of navigation was the purpose of the statute.

The violation of a statute which forbids the doing of certain acts does not give a cause of actionable negligence in favor of private individuals, unless the statute was designed to prevent such injuries as were suffered by the individual claiming damage, and unless it imposes upon the one violating the statute a specific duty for the protection or benefit of him who claims damage for the violation. 1 Thompson on Negligence, § 12; 20 Rawle C. L. p. 38, § 33. "The violation of the ordinance could have had no influence in causing the accident, and the trial court properly withdrew its consideration from the jury. It is a well-settled rule that a person cannot recover from another for negligence based upon the violation of a statute or ordinance which is not intended for his protection. The rule which is applicable to actions for negligence based upon the violation of a statutory duty is to all intents and purposes the same as the rule applicable to actions for negligence based upon a violation of a common-law duty. Where there is no duty, there can be no negligence. The statutory duty must be owing to the person injured, and not to some one else, in order that a violation thereof shall constitute actionable negligence."Anthony v. Connecticut Co., 88 Conn. 700, 707,92 A. 672. And it must also appear that the violation of the statute was the proximate cause of the injury sustained.Feehan v. Slater, 89 Conn. 697, 701, 96 A. 159.

This statute was for the protection of navigation. It was not designed for the protection or benefit of cottagers upon the shore. This is apparent upon the slightest inspection of the statute. Had this been a proper subject upon which to instruct the jury, the instruction would have been erroneous in omitting the essential element that the pieces of the barge so washed upon the shore did, or were apt to, impede or obstruct navigation.

The defendant assigns as error the refusal of the court to follow its requests upon the subject of the rule of diligence it was required to exercise after the stranding of the barge, and the failure of the court to give an adequate statement of what constituted proximate cause. In the condition of the pleadings the jury should have been instructed with somewhat more clearness, that if they found the barge was cast upon the shore through unavoidable accident and was broken up by the elements and its pieces thrown against plaintiff's cottage by the washing of the waves, the defendant would be responsible for the resultant damage only in case it took possession of the barge after it was cast upon the beach and thereafter failed to exercise reasonable care in removing the barge, and the damage done was proximately caused by such failure, to which the plaintiff did not materially contribute by her own want of reasonable care; and further, that the question of defendant's reasonable care was to be determined by ascertaining what a reasonably prudent person would have done under similar circumstances, among which, if found proven, were, the location and condition of the barge, and to what extent, if any, the defendant might have anticipated that the rocks would hold her, the season of the year, and the liability of storms or high wind or high tide breaking her up. The jury should also have considered what measures, if any, the defendant should have taken to either secure the barge in the position in which she lay, by anchors, chains or cables or other means, or to remove her.

The court was right in refusing to charge the jury, as defendant requested, that "if a vessel be sunk or wrecked without wilful fault of the owner, and the owner subsequently abandons the possession and control of the wrecked or sunken vessel, he is not thereafter liable for injuries which may be caused by such vessel." If this rule is applicable to a barge cast upon the shore, concerning which we express no opinion, the abandonment must occur immediately upon the wrecking or sinking of the barge. The defendant by taking possession of this barge as it lay upon the beach, and by its efforts to secure and remove her, could not thereafter abandon her and thus relieve itself of the duty of using reasonable care to remove the barge which it had assumed upon taking such possession.

The court was not in error in refusing to give the instruction so requested. The defendant kept possession of this barge, and actively endeavored to take her off the beach from October 14th to October 24th. Whether it subsequently abandoned her was a disputed issue. But whether it did or not, it could not thereby relieve itself of the responsibility of using reasonable care in preventing this barge from injuring owners of property without their own concurring negligence. To permit such defendant to escape liability would be unjust to adjoining owners of property, who might have protected their own interests had they not reasonably anticipated that defendant, having taken possession and control, would continue in it.

We have no occasion to pass upon the legal correctness of the instruction as requested.

The defendant's fifth request, was that defendant was only to be required to anticipate those circumstances of tide and weather which might ordinarily be expected to occur, and not storms of unusual character or severity; and that if the jury found the storm of October 24th was of such character, it was not defendant's duty to anticipate it. We think the court properly refused this charge. Reasonable care in the admitted situation meant great care, and great care required the defendant to anticipate any storm or tide liable to occur at that season, even though it was unusual in severity and of infrequent occurrence.

Defendant's seventh request was that "if you find that it would have been possible with reasonable effort for the plaintiff by the building of a bulkhead, by piling, or by other means, to protect her property against damage from wreckage, and that a reasonably prudent person owning a cottage located as was the plaintiff's cottage would have so protected the cottage, then the location of the cottage and the plaintiff's failure to protect the same must be regarded as a materially contributing cause to her damage, and your verdict should be for the defendant." The court correctly charged the jury upon this point as follows: "In other words, her action in building and maintaining it there was a perfectly legal one even though the house was in part below the high-water mark, and she was justified, as a matter of law, in anticipating that she would not be injured in the enjoyment of that legal right by any unlawful or negligent act or omission of any third party; and the law did not require her to set bulkheads or piles to protect herself against the illegal or negligent acts or omission of any one interfering with the legal rights which she was thus enjoying in her house. The plaintiff, in maintaining her cottage in this position, was not guilty of contributory negligence as matter of law." Plaintiff's right to build her house where she did, even though in part below high-water mark, was undoubted.Orange v. Resnick, 94 Conn. 573, 109 A. 864, 865. And she was under no obligation to protect her cottage against the negligent conduct of the defendant. That her cottage was exposed to damage from wreckage, did not require her, by bulkhead or otherwise, to protect her cottage from wreckage which defendant's negligence caused to be driven against it and to do it damage.

Other assignments of error in the charge are either covered by the charge as given, or by our discussion, or else do not in our opinion constitute reversible error.

The rulings on evidence may be disposed of briefly. Mr. Tarr's testimony as to the weather, was offered in support of plaintiff's claim to recover upon the ground of defendant's negligence in permitting the barges to break from the tow line. The geological survey map was offered to show the depth of water over which these barges drifted to the beach, as tending to prove that the defendant could, in the exercise of reasonable care, have anchored the barges in these waters and so have avoided the damage to plaintiff's cottage. The court was right in excluding both offers. The complaint does not allege, as we have shown, that the negligent breaking of the barges from the tow was the proximate cause of the damage to the plaintiff's cottage.

Defendant asked its witness, on his direct examination, the following question: "Mr. McCaffrey, in October, 1917, what was the condition in your trade with respect to demand and use of barges of the character of this barge?" The question was claimed for the purpose of showing that defendant had at this time a particular reason for attempting to save this barge. Defendant intended to claim that this tended to prove that it exercised reasonable care in the effort it expended in attempting to save the barge. The court sustained the objection that this evidence was incompetent. The ruling was right. The evidence was too remote.

Other rulings are too plainly right to make discussion of them useful.

The court submitted, at the request of the defendant, three interrogatories to the jury. After the verdict in favor of the plaintiff had been rendered, the jury were inquired of as to the finding upon these interrogatories, and the foreman replied that they had done nothing about them. In reply to the court's question of defendant's counsel as to whether he wished to insist upon the interrogatories, and stating that if he did the court must send the jury out to make their finding, counsel for defendant said that this was within the court's discretion. After some further discussion between the court and counsel and the foreman, the jury retired and later returned with their finding, endorsed upon these interrogatories: "The jury fail to agree." The jury were polled as to their agreement upon their answer to the interrogatories as submitted, and all answered in the affirmative, and the court thereupon accepted the finding upon the interrogatories.

The procedure taken was wholly irregular. The sole purpose of interrogatories is to obtain a special finding by the jury to explain or limit the general verdict.Bernier v. Woodstock Agricultural Soc., 88 Conn. 558,562, 92 A. 160; Nowsky v. Siedlecki, 83 Conn. 109,118, 75 A. 135. The trial court should not submit to the jury interrogatories which do not in fact serve this purpose. When, and to what extent, interrogatories shall be allowed, is within the reasonable discretion of the trial court. Freedman v. New York, N. H. H.R.Co., 81 Conn. 601, 614, 71 A. 901; Case v. Clark,83 Conn. 183, 195, 76 A. 518; Cullum v. Colwell, 85 Conn. 459,465, 83 A. 695. It would follow that the trial court may, at any time before answer is made by the jury, withdraw the interrogatories from the consideration of the jury; and if the discretion thus exercised is reasonable, reversible error cannot be predicated upon this action. But if not withdrawn, the jury should be required to answer the interrogatories with the taking of the verdict. The interrogatories as answered should be received and filed as a part of the verdict. Bernier v.Woodstock Agricultural Soc., 88 Conn. 558, 563,92 A. 160. And the verdict should not be accepted until after the interrogatories have been answered.

The proper procedure would require the clerk to take the verdict up to the point of its acceptance by the court, and then to take the answers to the several interrogatories, and thereafter to take the court's acceptance of the verdict as rendered together with the interrogatories as answered, and to continue the taking of the verdict according to our usual practice.

In view of our conclusions we do not find it necessary to pass upon the claimed corrections of the finding.

There is error, the judgment is set aside and a new trial ordered.

In this opinion the other judges concurred.